Ziegler v. O'Neill

Ziegler v O'Neill (2021 NY Slip Op 04926)

Ziegler v O'Neill

2021 NY Slip Op 04926

Decided on September 1, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 1, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
FRANCESCA E. CONNOLLY
ANGELA G. IANNACCI
LINDA CHRISTOPHER, JJ.
2019-06158
(Index No. 54179/16)

Barclay Damon LLP, Buffalo, NY (Randolph C. Oppenheimer and Sarah A. O'Brien of counsel), for appellant.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success, NY (Seth L. Berman of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of fiduciary duty, the defendant appeals from an order of the Supreme Court, Westchester County (David F. Everett, J.), dated February 15, 2019. The order, insofar as appealed from, denied the defendant's request to search the record pursuant to CPLR 3212(b) and award him summary judgment dismissing the complaint.

ORDERED that the appeal is dismissed, with costs.

The defendant's appeal from so much of the order as denied his request, made in his memorandum of law in opposition to the plaintiff's motion for summary judgment, that the Supreme Court search the record pursuant to CPLR 3212(b) and award him summary judgment dismissing the complaint is dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice (see CPLR 5701[a][2]), and we decline to grant leave to appeal (see CPLR 5701[c]; Vitiello v Merwin, 130 AD3d 609, 610; Peterson v City of New York, 120 AD3d 1328, 1329; Keyspan Gas E. Corp. v Supervisor of Town of N. Hempstead, 115 AD3d 810, 811).

DILLON, J.P., CONNOLLY, IANNACCI and CHRISTOPHER, JJ., concur.

ENTER:

Maria T. Fasulo

Acting Clerk of the Court